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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JASON JONES, 

 Case No. 2:11-cv-0871 

 Plaintiff, JUDGE GREGORY L. FROST 

 Magistrate Judge Kemp 

v. 

 

WARDEN, ROSS CORRECTIONAL 

INSTITUTION, et al., 

 Defendants. 

OPINION AND ORDER

 This matter is before the Court on Plaintiff Jason Jones’s objection (ECF No. 55) to the 

Report and Recommendation of the Magistrate Judge (ECF No. 51). In the Report and 

Recommendation, the Magistrate Judge recommended that this Court grant Defendants’ motion 

for summary judgment (ECF No. 42) and that this case be dismissed. (Report and 

Recommendation, ECF No. 51 at PageID# 446.) Also before the Court is Defendants’ motion to 

dismiss Plaintiff’s objections to the Report and Recommendation as untimely (ECF No. 58), 

which this Court treats as Defndants’ response to Plaintiff’s objections, and Plaintiff’s response 

thereto (ECF No. 59). 

 The Court OVERRULES Plaintiff’s objections (ECF No. 55) as untimely, ADOPTS the 

Magistrate Judge's Report and Recommendation (ECF No. 51), and GRANTS Defendants’ 

motion for summary judgment (ECF No. 42). 

 

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I. 

In this action brought under 42 U.S.C. § 1983, Plaintiff alleges that Defendants 

Lieutenant Lunsford, Lieutenant Morison, and Lieutenant Powers, all of whom are employees of 

Ross Correctional Institution, conspired to harm Plaintiff by placing him in housing units that 

were “dangerous” to him. (See ECF No. 16 at PageID# 64.) Plaintiff also claims that Defendant 

prison officials Rob Jeffreys and Inspector Whitten “‘demonstrated deliberate indifference and 

[dereliction] of duty in violation of Ohio Revised Code 2941.44 [sic 2921.44].’” (Id. at PageID# 

64 (quoting Pl.’s Compl.).) In particular, Plaintiff alleges that these Defendants failed to take 

corrective action to address the “risk” when they disapproved Plaintiff’s request for protective 

custody. (Id.) 

Plaintiff objects to the Magistrate Judge’s recommendation that summary judgment be 

granted in favor of Defendants. When the Court receives objections to a report and 

recommendation on a dispositive matter, the District Judge “must determine de novo any part of 

the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). 

After review, the District Judge “may accept, reject, or modify the recommended disposition; 

receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see 

also Ridenour v. Collins, 692 F. Supp. 2d 827, 829 (S.D. Ohio 2010). 

In this case, the Court is reviewing the Magistrate Judge’s recommendation to grant 

Defendants’ motion for summary judgment. Summary judgment is appropriate “if the pleadings, 

the discovery and disclosure materials on file, and any affidavits show that there is no genuine 

issue of material fact and that the movant is entitled to judgment as a matter of law.” 

Fed.R.CivP. 56(a). The Magistrate Judge found that Defendants were entitled to summary 

judgment. Specifically, the Magistrate Judge ruled (1) that to the extent Plaintiff asserted 

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“official capacity” claims against corrections officers employed by the ODRC, such claims were 

barred by the Eleventh Amendment, (2) that Plaintiff’s claims against the three lieutenants are 

barred by Plaintiff’s failure to exhaust administrative remedies, and (3) Plaintiff failed to create a 

genuine issue of material fact with respect to his constitutional claims against Warden Jeffreys. 

(ECF No. 51 at PageID# 441-46.) 

The Magistrate Judge’s Report and Recommendation specifically advised the parties of 

the time period for filing objections (14 days) and that the failure to object would result in a 

waiver of the right to have the undersigned judge review the Report and Recommendation de 

novo. (Id. at PageID# 447.) Plaintiff did not file objections within 14 days, but, rather, asked for 

an extension of time within which to file his objections. (ECF No. 53.) The Court granted the 

Motion, giving Plaintiff until September 3, 2013, to file his objections. (ECF No. 54.) Plaintiff 

did not file his objections in this Court until September 9, 2013. (ECF No. 55.) 

II. 

As a threshold matter, this Court must address the timeliness of Plaintiff’s objections to 

the Report and Recommendation. Defendants filed a “motion to dismiss” the objections (ECF 

No. 58) on the basis that they are untimely, having been filed six days after the deadline as 

extended by this Court. Though the Court considers Defendants’ “motion” a misnomer, it 

nonetheless regards Defendants’ “motion” as a response to Plaintiff’s objections, asserting 

untimeliness as a reason to overrule or disregard them.1

 

A failure to file timely objections not only waives the right to de novo review of a 

Magistrate’s Report and Recommendation, but dispenses with the need for the district court to 

 

1 Defendants’ motion is a misnomer because courts “dismiss” actions, not individual filings within an 

action. The Court could understand if Defendants filed a “motion to strike” Plaintiff’s objections as 

untimely or if Defendants simply filed a response to the objections raising the timeliness issue (i.e., what 

the Court has treated Defendants’ filing to be). But a “motion to dismiss” is, as a technical matter, not 

within the universe of filings that would accomplish what Defendants seek to do here. 

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conduct any review. See Bosley v. 21 WFMJ Television, Inc., 245 F. App’x 445, 450 (6th Cir. 

2007); see also United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981) (holding that a 

party’s failure to object to a magistrate judge’s report within the time provided for filing waives 

that party’s right to appeal); Thomas v. Arn, 474 U.S. 140, 142 (1985) (approving Walters rule). 

This rule is procedural and not jurisdictional, and the court may excuse compliance with it in the 

interests of justice. See Thomas, 474 U.S. at 155. But while the court may excuse compliance, it 

is not required to do so. See e.g. Teare v. Independence Local Sch. Dist. Bd. of Edn., No. 1:10-

cv-1711, 2011 U.S. Dist. LEXIS 113185, at *2 (N.D. Ohio Sept. 30, 2011) (finding that failure 

to file timely objections “dispenses with the need for the district court to conduct any review”);

Stoutamire v. Morgan, No. 4:10-cv-2657, 2011 U.S. Dist. LEXIS 149987, at *2 (N.D. Ohio Dec. 

30, 2011) (declining to consider untimely filed objections). 

This Court granted Plaintiff an extension of time for filing his objections to the 

Magistrate’s Report and Recommendation, giving him until September 3, 2013 within which to 

file them. (ECF No. 54.) Despite this extension, Plaintiff filed his objection on September 9, 

2013. (ECF No. 55.) On its face, Plaintiff’s objection is untimely by six days. 

In the interests of justice, the Court may allow the late filing of objections. But Plaintiff 

does not show any reason to justify his late filing. Instead of explaining his untimeliness, 

Plaintiff takes the bizarre position that his objection was timely filed. 

To explain how his filing is timely, Plaintiff first invokes Fed. R. Civ. P. 6(d), which 

states: “When a party may or must act within a specified time after service and service is made 

under Rule 5(b)(2)(C), (D), or (F), 3 days are added after the period would otherwise expire 

under Rule 6(a).”2

 But this rule is inapplicable and is of no help to Plaintiff in any event. The 

 

2 Plaintiff actually cites (and quotes from) former Ohio Civ. R. 6(E) for this proposition. This being 

federal court, however, it is the federal rule of civil procedure that applies. 

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rule is inapplicable because the Court set a date certain for Plaintiff’s objection being due 

(September 3, 2013); the Court did not anchor the deadline to a specified time after service. 

Moreover, even if the three-day rule were to apply, it would mean only that Plaintiff’s objections 

were due on September 6, 2013. Even if September 6th were the due date, Plaintiff’s filing on 

September 9, 2013 was still untimely. 

Nor does application of the so-called “prison mailbox rule” help Plaintiff. See Brand v. 

Motley, 526 F.3d 921, 925 (6th Cir. 2008). Under the “prison mailbox rule,” a pro se prisoner’s 

filing is deemed filed when it is handed over to prison officials for mailing to the court. Id. 

(citing Richard v. Ray, 290 F.3d 810, 812-13 (6th Cir. 2002) (per curiam) (extending Houston v. 

Lack, 487 U.S. 266 (1988)). As evidence of when the prisoner handed over the filing to the 

prison, courts look to the date the prisoner signed the filing, absent contrary evidence. Id. at 925; 

see also Scoba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (looking at the date on the 

certificate of service to ascertain timeliness of the inmate’s motion for an extension of time to 

effect service). In this case, however, the Court has before it no evidence from which to 

ascertain when Plaintiff handed over his objection to prison officials for mailing. Plaintiff’s 

certificate of service is conspicuously undated. (ECF No. 55 at PageID# 457.) Accordingly, 

Plaintiff has not established the timeliness of his objection, even if the Court were to give him 

the benefit of the prison mailbox rule endorsed by the Sixth Circuit. 

For these reasons, the Court deems Plaintiff’s objection to be untimely filed. Because 

Plaintiff has failed to file timely objections to the Magistrate’s Report and Recommendation, the 

Court need not undertake a de novo review. The Court has nevertheless reviewed the Report and 

Recommendation and finds no error in the analysis of the Magistrate Judge. 

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III. 

The Court OVERRULES Plaintiff’s objections (ECF No. 55) as untimely, ADOPTS the 

Magistrate Judge's Report and Recommendation (ECF No. 51), and GRANTS Defendants’ 

motion for summary judgment (ECF No. 42). 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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